United States District Court, N.D. New York
June 2, 2004.
CHARLES T. PASCIUTI, Petitioner, -against- DARYL DREW, in his capacity as Warden of the Federal Correctional Institution at Ray Brook, New York, Respondent
The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM DECISION and ORDER
Charles Pasciuti ("Pasciuti" or "Petitioner") is serving a 180 month
sentence as an inmate at the Federal Correctional Institution at Ray
Brook, New York for his role in a conspiracy to distribute a controlled
substance. Petitioner has been incarcerated since October 3, 1991, and
his 15 year sentence would expire on October 1, 2006. Applying credit for
good conduct time ("GCT") to Petitioner's sentence, the Bureau of Prisons
("BOP") has set his release date as October 26, 2004.
Pasciuti alleges that the BOP has incorrectly calculated the amount of
GCT to which he is entitled under 18 U.S.C. § 3624(b). Pursuant to
28 U.S.C. § 2241, and after exhausting his administrative remedies,
Pasciuti filed the instant habeas petition, asking the Court to alter
BOP's GCT calculation and order his release date to be set at July 11,
2004. In addition to his filing a habeas petition, Petitioner has also
filed a motion for a preliminary injunction, which requested similar relief, namely, his release from Ray Brook on July 11,
(a) 18 U.S.C. § 3624(b)
BOP's calculation of GCT is based upon the Congressional mandate in
18 U.S.C. § 3624(b) which reads*fn2:
(b) Credit toward service of sentence for
(1) . . . [A] prisoner who is serving a term of
imprisonment of more than 1 year . . . shall
receive credit toward the service of his sentence,
beyond the time served, of up to 54 days at the
end of each year of his term of imprisonment,
beginning at the end of the first year of the
term, unless [BOP] determines that, during that
year, he has satisfactorily complied with . . .
institutional regulations. . . . If the Bureau
determines that, during that year, the prisoner
has not satisfactorily complied with such
institutional regulations, he shall receive no
such credit toward service of his sentence or
shall receive such lesser credit as [BOP]
determines to be appropriate. [BOP]'s
determination shall be made within fifteen days
after the end of each year of the sentence. Such
credit toward service of sentence vests at the
time it is received. Credit that has vested may
not later be withdrawn, and credit that has not
been earned may not later be granted. Credit for
the last year or portion of a year of the term of
imprisonment shall be prorated and credited within
the last six weeks of the sentence.
The parties construe this statute differently, which forms the basis of
the instant petition. Petitioner contends that by using the phrase "term
of imprisonment", a legal term of art, in § 3624(b), Congress
intended to allot 54 days of GCT for each year of an inmate's
sentence, not merely the time he has served.
Therefore, Petitioner asserts that his total GCT is calculated by
multiplying his total sentence of 15 years by 54, the number of days GCT
awarded under the statute for each "year of the prisoner's term of imprisonment," which
results in 810 days of GCT and his release on July 11, 2004.
BOP calculates Petitioner's GCT differently. At the end of each year of
imprisonment, for his good conduct during that year of incarceration, BOP
has awarded Petitioner 54 days of GCT. Therefore, as of October 1, 2004
he will have vested 648 days CGT 54 days for each of 12 years he
has served.*fn3 After applying the credit of 648 GCT days to his 15 year
sentence, on October 1, 2004, Petitioner will have less than one year
remaining on his sentence. Petitioner will then be awarded GCT of 3 days,
a prorated amount of GCT for the duration of his sentence which is less
than a full year.
One district judge has explained the dispute as follows:
[T]he pivotal clause in § 3624(b) is the one
stating than an inmate may earn up to 54 days of
good conduct time "at the end of each year of the
prisoner's term of imprisonment." That clause
raised the question whether the phrase "term of
imprisonment" means "sentenced [sic] imposed" or
"time served." If "term of imprisonment" refers to
the sentence, an inmate's maximum potential good
conduct time could be calculated by multiplying 54
days by the number of years in the sentence. . . .
However, if a term of imprisonment is defined by
the inmate's actual time served, the number of
good time credits that could be earned would be
reduced and a more complicated calculation would
be required because an inmate that earns good time
will not actually serve his full sentence.
White v. Scibana. 2004 U.S. Dist. LEXIS
7257, * 6-7 (W.D.Wis. April 23, 2004).
Petitioner contends that allotting him 54 days for each year
served, as opposed to each year of his imprisonment to which
he was sentenced, has resulted in GCT of only 47 days per year,
in violation of § 3624(b).*fn4
Pasciuti asks this Court to hold that
BOP's decision, that he be granted only 47 days of GCT, violated the Administrative Procedure Act ("APA"),
5 U.S.C. § 551-559, because BOP did not merely interpret the statute,
but rather made a unilateral "legislative" decision, which it cannot do.
Petitioner also contends that, even if BOP's determination did not
violate the APA, the calculation method, published as BOP's Sentence
Computation Manual and as BOP Program Statement 5880.28, is contrary to
the clear and unambiguous intent of Congress expressed in § 3624(b),
which measures GCT against the "term of imprisonment" and not the "time
(b) Administrative Procedure Act
Petitioner first alleges that the decision to award only 47 days GCT
amounted to a legislative determination, rather than merely an
interpretative one, and that as such, it must be subjected to the APA's
notice and comment procedure. Because the BOP calculation formula did not
pass through this procedure, Petitioner asks this Court to set it aside.
(1) Legislative and Interpretive Rules
A rule or decision which amounts to a legislative determination must be
submitted to the APA's notice and comment procedural requirements.
5 U.S.C. § 553. However, an agency's interpretive decision is exempt
from these procedures. 5 U.S.C. § 553(b)(A). Courts have had to
delineate between "interpretive" and "legislative" rules, because the APA
does not. See, e.g., Sweet v. Sheahan,
235 F.3d 80, 90 (2d Cir. 2000). The Second Circuit has stated "that
legislative rules are those that create new law, right, or duties, in
what amounts to a legislative act." N.Y. State Elec. & Gas.
Corp. v. Saranac Power Partners L.P., 267 F.3d 128, 131 (2d Cir.
2000) (internal quotations omitted). Interpretative rules, however, "do
not create rights, but merely clarify an existing statute or regulation." Id. (internal quotations and citations
BOP's decision on how to calculate GCT did not amount to a legislative
determination. Rather, the BOP decision to award GCT was interpretative
of § 3624(b), determining only when BOP must credit an
inmate with his 54 days GCT.
In an effort to make BOP's calculation appear legislative, Petitioner
continually states that BOP has awarded him only 47 days of GCT per year,
instead of the 54 days contemplated under the statute. Petitioner arrives
at this number by dividing the number of GCT days that BOP will award him
under the BOP calculation method, 705 days of GCT, by Petitioner's full
15 year sentence, to render 47 days GCT per year. Such a calculation
makes it appear as though an inmate has been deprived of 7 days of GCT
time each year, potentially indicating that a substantive right has been
lost. However, this mischaracterizes the BOP calculation.
It is possible that, with credit of GCT, a prisoner will have been
sentenced to years he will not be required serve.*fn5 But, § 3624(b)
orders that GCT is credited only "at the end of each year of
his term of imprisonment" (emphasis added). BOP's calculation adheres to
this Congressional mandate. It does not award inmates 54 days of GCT for
years included in their initial sentences which are not ultimately
served, because the time for awarding those days, at the end of the
year of imprisonment, never arises for those years that are not
served. The basis of the BOP calculation is the language chosen by
Congress in § 3624(b), which directs GCT credit to be given at the
end of each year. Hence, the calculation is based on Congress'
legislative decision, not the BOP's. (2) 28 C.F.R. § 523.20
Petitioner notes several regulations that were promulgated through the
APA's notice and comment procedure and address the substance of Congress'
mandate under § 3624(b), including 28 C.F.R. § 523.20, published in the
Federal Register at 62 FR 50786. This regulation specified that pursuant
to 18 U.S.C. § 3624(b), BOP "shall award . . . 54 days credit for
each year served prorated when the time served by the inmate
for the sentence during the year is less than a full year if the inmate
has earned or is making satisfactory progress toward earning a GED
credential or high school diploma. . . ." 28 C.F.R. § 523.20 (emphasis
In Pacheco-Camacho v. Hood, 272 F.3d 1266 (9th Cir. 2001),
cert. denied 535 U.S. 1105, 122 S.Ct. 2313, 152 L.Ed.2d 1067
(2002), the Ninth Circuit relied partly on 28 C.F.R. § 523.20, and the
properly promulgated notice and comment procedure that preceded it, as a
basis for upholding the BOP's determination that GCT be awarded on the
basis of time served. Because this regulation was promulgated
in accordance with the procedures of the APA and stated that 54 days of
GCT would be awarded only for time served, the court applied Chevron
deference and upheld the BOP interpretation as a reasonable
interpretation of the statute.
Petitioner criticizes the Ninth Circuit's reliance on 28 C.F.R. § 523.20,
calling it a "very obscure and highly indirect reference" to the
determination that GCT should be measured against time served, rather
than sentence imposed. (Dkt. No. 1: petitioner's Memo, of Law at 17).
Petitioner posits that this regulation, although properly promulgated,
could not serve as a basis for awarding only 47 days of GCT because it
was published more than five and a half years after publication
and dissemination of Program Statement 5880.28, which first announced the
BOP's GCT calculation method. Petitioner's criticism is inconsequential here. As explained above,
the BOP's method of calculating GCT is interpretive of the statute and
not a legislative determination, and therefore a regulation promulgated
with the APA's notice and comment procedure was not required before the
BOP could apply its GCT calculation method.
(c) Congressional intent in 18 U.S.C. § 3624(b)
Petitioner also claims that even if BOP did not violate the APA, its
calculation method is contrary to the clear and unambiguous intent of
Congress expressed in § 3624(b), and therefore it should be set
aside. Petitioner's position is contrary to that of several courts.
See Brown v. Hemingway, 53 Fed. Appx. 338 (6th Cir. 2002)
(unpublished decision), Williams v. Lamanna, 20 Fed. Appx. 360
(6th Cir. 2001) (unpublished decision), Martinez v. Wendt, 2003
WL 22456808 (N.D.Tex.) (Mag. Report and Recommendation), adopted by
the district court 2003 WL 22724755 (N.D.Tex. 2003) (all holding
that the BOP's interpretation of § 3624(b) based on time served was
A court accords substantial deference to an agency's interpretation of
a statute it is entrusted to administer. Brissett v. Ashcroft,
363 F.3d 130, 133 (2d Cir. 2004) (citing to Chevron U.S.A., Inc. v.
Natural Resources Defense Council. Inc., 467 U.S. 837, 843,
81 L.Ed.2d 694, 104 S.Ct. 2778 (1984); Diallo v. I.N.S.,
232 F.3d 279, 285 (2d Cir. 2000)). "In such circumstances, where the relevant
statutory provision is silent or ambiguous, a court may not substitute
its own construction of a statutory provision for a reasonable
interpretation made by the administrator of an agency." Id.
(citing Sutherland v. Reno, 228 F.3d 171, 174 (2d Cir. 2000)).
(1) Ambiguity in 18 U.S.C. § 3624(b)
Under Chevron, the Court must first determine whether the
phrase "term of imprisonment" is ambiguous in the statute. Petitioner asserts that by using the
phrase "term of imprisonment" in § 3624(b), the statute is not
ambiguous because the phrase "has a well-established meaning the
period of time imposed in the sentencing court's judgment, and not actual
time in custody." (Petitioner's memo at 30). Therefore, Petitioner asks
this Court to hold that Congress' directive is clear inmates must
receive 54 days GCT for each year of their sentence, not of
However, this contention is the exact opposite of the conclusion
reached by the Ninth Circuit. In Pacheco, the court held that
"term of imprisonment" is ambiguous and explained that "the language of
section 3624(b) does not make clear whether the sentence imposed or the
time served" should be the basis for awarding GCT. Pacheco, 272
F.3d at 1269. The court then looked to the legislative history, which
lent "additional support to the BOP's regulation." Id.
To dispute the Ninth Circuit's analysis, Petitioner relies on
White v. Scibana, 2004 U.S.Dist. LEXIS 7257 (W.D. Wis. 2004).
In White, the court disagreed with Pacheco, and held
that "§ 3624(b) is unambiguous: `term of imprisonment' means
`sentence imposed.'" Id. at *2. The court recognized that "term
of imprisonment" is a "legal term of art that Congress has employed in
dozens of statutes . . . Throughout these statutes, Congress has
uniformly used `term of imprisonment' as a synonym for `sentence.'"
Id. at * 11. However, this Court disagrees with the
White court's, and now Petitioner's analysis, as such reasoning
focuses solely on the phrase "term of imprisonment."
Accepting the rationale of Petitioner and the White court
leads to an inconsistency in the statute. As explained above, if GCT was
awarded based on the term of imprisonment imposed by the sentencing
judge, an inmate may be awarded GCT for years on his initial sentence
that he is not required to serve. However, BOP is then faced with a
dilemma. The statute directs BOP to credit GCT at "the end of each year of the prisoner's term of
imprisonment." § 3624(b). The question that arises is as follows:
Because the statute requires BOP to award GCT at the end of a
year of imprisonment, then when is that credit vested if a year of
imprisonment is never actually served?*fn6
(2) Determination of whether BOP's interpretation of §
3624(b) is reasonable
Having found that the phrase "term of imprisonment", as it is used in
the statute, is ambiguous, the Court must next determine only whether
BOP's interpretation "is based on a permissible construction of the
statute." Chevron, 467 U.S. at 843; Pacheco, 272 F.3d
at 1270. Deference is due to BOP even though its method of calculation is
only expressed in a Program Statement and not in a promulgated
[T]he [BOP]'s interpretation is the most natural
and reasonable reading of § 3585(b)'s
"official detention" language. It is true that the
[BOP]'s interpretation appears only in a "Program
Statemen[t]" an internal agency
guideline-rather than in "published regulations
subject to the rigors of the [APA], including
public notice and comment." 21 F.3d at 562. But,
BOP's internal agency guideline, which is akin to
an "interpretive rule" that "do[es] not require
notice and comment." Shalala v. Guernsey
Memorial Hospital, 514 U.S. 87. 99.
115 S.Ct. 1232, 1239, 131 L.Ed.2d 106 (1995), is still
entitled to some deference, cf. Martin v.
Occupational Safety and Health Review Comm'n,
499 U.S. 144, 157, 111 S.Ct. 1171, 1179,
113 L.Ed.2d 117 (1991), since it is a "permissible
construction of the statute[.]" Chevron,
467 U.S. at 843.
Reno v. Koray, 515 U.S. 50. 60-61.
115 S.Ct. 2021, 132 L.Ed.2d 46 (1995).
Although the phrase "term of imprisonment" is ambiguous as it is used
in the statute, the overall directive of Congress is not easily
disguised. See id. at 56. BOP's interpretation is not only
reasonable, but is in fact the only logical one there is. The statute
awards GCT based upon BOP's determination that "during that year" the
prisoner complied with institutional disciplinary regulations. Such a
directive requires that the prisoner has been incarcerated during that
year so that his compliance may be measured. Therefore, granting GCT for years
that will not be served is illogical, because compliance with
disciplinary rules during those years is not possible.
Moreover, in Pacheco, the court explained why the inmate's
position, the same one Petitioner now asserts, was unreasonable:
Instead of a prorated portion, Pacheco wants the
entire fifty-four days of credit-even though he
never served the full 365 days. Whereas the model
prisoner will ordinarily receive his
fifty-four-day credit after complying with prison
disciplinary rules for 365 days, under Pacheco's
reading, a prisoner who serves 311 days would
receive the same number of credits for exhibiting
good behavior over only eighty-five percent of the
year. Pacheco's interpretation would therefore
confer upon the prisoner a bonus during his last
year of imprisonment. Nothing in the statute
clearly suggests that Congress intended to give
the prisoner such a windfall in his last year.
Id. at 1268-69.
BOP's determination reasonably interprets the Congressional mandate of
§ 3624(b). BOP's calculation affords inmates their full 54 days of
GCT, credited at the end of every year, which results in no GCT credit
for years of an inmate's sentence that are not served. Such an
interpretation is reasonable, and perhaps inevitable, given the directive
of § 3624(b) that GCT be credited "at the end of each year
of the prisoner's term of imprisonment."
(3) Rule of lenity does not apply
Finally, Petitioner contends that the rule of lenity dictates that any
statutory ambiguity must be resolved in his favor. (Dkt. No. 1:
Petitioner's Memo, of Law at 38). He claims that, because his reading of
the statute is more favorable to those incarcerated, it should prevail.
"The rule of lenity ensures that the penal laws will be sufficiently
clear, so that individuals do not accidentally run afoul of them and
courts do not impose prohibitions greater than the legislature intended."
Pacheco, 272 F.3d at 1271 (citing United States v.
Bass, 404 U.S. 336, 347-48, 30 L.Ed.2d 488, 92 S.Ct. 515 (1971)).
"The rule `applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the
penalties they impose.'" Id. (quoting Bifulco v. United
States, 447 U.S. 381, 387, 65 L.Ed.2d 205, 100 S.Ct. 2247 (1980).
As explained above, the phrase "term of imprisonment" is ambiguous in
the statute at issue. While the phrase has become a legal term of art
meaning "years of sentence", as used in other criminal statutes, this
does not lend ambiguity to the entire statute. Rather, Congress' intent
can be easily understood from the overall statutory scheme. See Reno
v. Koray, 515U.S. at 56 ("Viewing the phrase ["official detention"]
in isolation, it may be said that either reading is plausible. But it is
a fundamental principle of statutory construction (and, indeed, of the
language itself) that the meaning of a word cannot be determined in
isolation, but must be drawn from the context in which it is used.")
(internal citations and quotations omitted). Because inconsistencies
would arise if "term of imprisonment" were read as "sentence", Congress
could only have intended the phrase to be used to mean years that an
inmate is actually imprisoned. Therefore, while there is ambiguity
stemming from the meaning of one phrase in the statute, when viewed in
its entirety, § 3624(b) is not ambiguous and the rule of lenity does
For the reasons set forth above, it is hereby
ORDERED that Pascuiti's motion for a preliminary injunction is
DENIED; and it is further
ORDERED that Pascuiti's petition pursuant to 28 U.S.C. § 2241 is
DENIED and DISMISSED; and it is further
ORDERED that the Clerk serve a copy of this Order on all parties.
IT IS SO ORDERED.